Circle Block Partners, LLC v. Fireman's Fund Insurance Comp ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2459
CIRCLE BLOCK PARTNERS, LLC and
CIRCLE BLOCK HOTEL, LLC,
Plaintiffs-Appellants,
v.
FIREMAN’S FUND INSURANCE COMPANY,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:20-cv-02512-JPH-MJD — James Patrick Hanlon, Judge.
____________________
ARGUED JANUARY 14, 2022 — DECIDED AUGUST 17, 2022
____________________
Before MANION, ROVNER, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. This appeal involves another
business insurance coverage dispute arising out of the
COVID-19 pandemic. In previous cases, we have concluded
under Illinois and Michigan law that businesses forced to shut
down or reduce operations during the pandemic failed to al-
lege “direct physical loss” or “direct physical damage” to
property. E.g., Paradigm Care & Enrichment Center, LLC v. West
2 No. 21-2459
Bend Mutual Insurance Co., 33 F.4th 417 (7th Cir. 2022) (Illinois
and Michigan law); Sandy Point Dental, P.C. v. Cincinnati In-
surance Co., 20 F.4th 327 (7th Cir. 2021) (Illinois law). Here, we
reach the same conclusion under Indiana law, in accord with
the only Indiana appellate opinion directly on point. See Indi-
ana Repertory Theatre v. Cincinnati Casualty Co., 180 N.E.3d 403(Ind. App. 2022), transfer denied, 2022 WL 3021434 (Ind.
July 19, 2022). We also agree with the district court that any
attempt to amend the complaint would be futile, so we affirm
the district court’s decision to dismiss the case with prejudice.
Finally, because Indiana courts will have opportunities to ad-
dress these issues in other cases, and in view of the Indiana
Supreme Court’s decision to deny transfer in the Indiana Rep-
ertory Theatre case, we deny the plaintiffs’ motion to certify
two questions of state law to that court.
I. Facts and Procedural History
Plaintiffs Circle Block Partners, LLC and Circle Block Ho-
tel, LLC own and operate the Conrad, a luxury hotel in down-
town Indianapolis. The Conrad features over 200 guest
rooms, a business center, and spa and fitness facilities. The
hotel also hosts weddings and other gatherings.
In early 2020, Circle Block was anticipating a busy spring
season at the Conrad, with several high-profile sporting
events, conventions, and live performances scheduled to take
place nearby. Instead, of course, the COVID-19 pandemic dra-
matically altered daily life. In March, state and county gov-
ernments adopted public health measures in response to the
spread of COVID-19. Both the state and county prohibited
public gatherings of more than fifty people. In addition, an
Indiana stay-at-home order restricted travel and mandated
the closure of all non-essential businesses. Hotels were
No. 21-2459 3
classified as essential businesses “to the extent they are used
for lodging and delivery or carryout food services.”
As COVID-19 spread and these restrictions went into ef-
fect, the Conrad’s business quickly dried up. By March 19,
only six of the hotel’s guest rooms were occupied. A month
later, the hotel suspended operations entirely. Circle Block al-
leges that the Conrad “lost virtually all of its business income
during this time.” The hotel continued to incur business ex-
penses such as payroll and mortgage costs, along with addi-
tional expenses for cleaning and disinfecting the property.
On March 23, Circle Block filed a claim under its commer-
cial property insurance policy with defendant Fireman’s
Fund Insurance Company. As relevant here, the “all-risk”
policy covering the Conrad included business income and ex-
tra expense coverage, civil authority coverage, dependent
property coverage, communicable disease coverage, and
business access coverage. Each of those relevant coverages re-
quired “direct physical loss or damage” to property. The pol-
icy also included a “mortality and disease” exclusion.
Fireman’s Fund denied the claim on September 2, 2020.
Circle Block then filed this case against Fireman’s Fund in an
Indiana state court for breach of contract. Fireman’s Fund re-
moved the suit to the Southern District of Indiana and moved
to dismiss under Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim.
The district court granted the motion to dismiss. Circle
Block Partners, LLC v. Fireman’s Fund Insurance Co., No. 20-cv-
02512, 2021 WL 3187521 (S.D. Ind. July 27, 2021). The court
concluded that Circle Block had not alleged any direct physi-
cal loss or damage. A mere loss of use or functionality, the
4 No. 21-2459
court said, was not sufficient. Nor were Circle Block’s allega-
tions that virus particles had attached to surfaces at the hotel
enough to show direct physical loss or damage. Because it
would not be possible for Circle Block to cure the pleading
deficiencies in an amended complaint, the court dismissed the
case with prejudice. This appeal followed.
II. Analysis
We review de novo the district court’s dismissal for failure
to state a claim. East Coast Entertainment of Durham, LLC v.
Houston Casualty Co., 31 F.4th 547, 550 (7th Cir. 2022). At this
stage, we accept all well-pleaded allegations as true, and we
draw all reasonable inferences in favor of the plaintiff. Bilek v.
Federal Insurance Co., 8 F.4th 581, 584 (7th Cir. 2021). To avoid
dismissal, the complaint must “state a claim to relief that is
plausible on its face.” Paradigm Care, 33 F.4th at 420, quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the plaintiff
must show “more than a sheer possibility” of liability, this
standard “is not akin to a ‘probability requirement.’” Iqbal, 556
U.S. at 678, quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
556 (2007).
This case arises under our diversity jurisdiction, and the
parties agree that Indiana law applies. Absent a controlling
decision from the Indiana Supreme Court, we do our best to
predict how that court would rule on the issues of law. Ma-
shallah, Inc. v. West Bend Mutual Insurance Co., 20 F.4th 311, 319
(7th Cir. 2021). In doing so, we may consider decisions from
the Indiana Court of Appeals. See id.Under Indiana law, the interpretation of an insurance pol-
icy is a legal question that turns on traditional principles of
contract interpretation. Ebert v. Illinois Casualty Co., 188 N.E.3d
No. 21-2459 5
858, 863–64 (Ind. 2022). A reviewing court must construe the
policy as a whole and aim to “harmonize the policy’s provi-
sions rather than place them in conflict.” Pelliccia v. Anthem
Insurance Cos., 90 N.E.3d 1226, 1231 (Ind. App. 2018). If the
language of a policy provision is “clear and unambiguous,”
then that plain meaning controls. Ebert, 188 N.E.3d at 864.
Where a provision is ambiguous, however, it is construed in
favor of the insured. Id. Ambiguity exists where “reasonably
intelligent policyholders would honestly disagree on the pol-
icy language’s meaning.” Erie Indemnity Co. v. Estate of Harris,
99 N.E.3d 625, 630 (Ind. 2018). A term is not rendered ambig-
uous “by the mere fact that the parties differ as to its mean-
ing.” G&G Oil Co. of Indiana v. Continental Western Insurance
Co., 165 N.E.3d 82, 87 (Ind. 2021). 1
1 Circle Block notes correctly that this case must be decided based on
Indiana law, noting that there is “no federal general common law.” Erie
Railroad Co. v. Tompkins, 304 U.S. 64, 78 (1938). Yet principles of Indiana
law regarding insurance policy interpretation closely resemble those of Il-
linois and other states whose law courts have applied in COVID-19 insur-
ance cases. See, e.g., Stant USA Corp. v. Factory Mutual Insurance Co., No.
21-cv-00253, 2022 WL 326493, at *5 (S.D. Ind. Feb. 3, 2022) (citing Sandy
Point Dental and other decisions based on Illinois law and finding “no
principled basis on which to hold that these findings and conclusions un-
der Illinois law do not apply equally to insurance contracts in Indiana”),
appeal docketed, No. 22-1336 (7th Cir. Mar. 2, 2022). We have tried to keep
minds open to the arguments that Indiana law is different on the specific
issues presented here, but we have not been persuaded that it actually is
different. See generally Rock Dental Arkansas PLLC v. Cincinnati Insurance
Co., No. 21-2919, – F.4th –, 2022 WL 2840490, at *2 (8th Cir. July 21, 2022)
(relying on previous decision under different state’s law because laws of
both states “instruct courts to enforce unambiguous insurance contracts
as written and give each term its ordinary meaning”); East Coast Entertain-
ment, 31 F.4th at 551 (“The growing national consensus regarding the
6 No. 21-2459
A. Scope of Coverage
With those principles in mind, we turn to the policy lan-
guage at issue. As the district court noted, each policy provi-
sion under which Circle Block asserts coverage requires “di-
rect physical loss or damage” to property. Circle Block, 2021
WL 3187521, at *2. Just before oral argument in this case, the
Indiana Court of Appeals addressed similar language in Indi-
ana Repertory Theatre v. Cincinnati Casualty Co., 180 N.E.3d 403(Ind. App. 2022). There, the plaintiff was an Indianapolis the-
ater—located just steps away from the Conrad—that had
been forced to close temporarily due to the pandemic. The
theater filed a claim with its insurer for loss of business in-
come and extra expenses. The insurer denied the claim, ex-
plaining that the theater had not suffered “direct physical loss
or damage” to property, as required by the insurance policy.
The theater sued in Indiana state court, and the trial court
granted partial summary judgment for the insurer.
On appeal, the theater argued that it had suffered direct
physical loss or damage because it could not use the property
to host live performances. The Indiana Court of Appeals re-
jected that loss-of-use theory. Instead, the court drew guid-
ance from a New York case denying coverage where the poli-
cyholder’s property “did not suffer any damage or alteration”
but “was unusable for its intended purpose because of an out-
side factor.” 180 N.E.3d at 410, citing Roundabout Theatre Co. v.
Continental Casualty Co., 302 A.D.2d 1 (N.Y. App. 2002). The
court also pointed to a recent COVID-19 insurance case in
which the Eighth Circuit denied coverage and held that direct
meaning of ‘direct physical loss’ underscores that this case does not turn
on variations in state contract law.”).
No. 21-2459 7
physical loss or damage requires “some physicality to the loss
or damage of property—e.g., a physical alteration, physical
contamination, or physical destruction.” Id., quoting Oral Sur-
geons, P.C. v. Cincinnati Insurance Co., 2 F.4th 1141, 1144 (8th
Cir. 2021). Ultimately, the theater “did not suffer physical loss
or physical damage under the language of the Policy because
the premises covered … was not destroyed or altered in a
physical way that would require restoration or relocation.” Id.The same reasoning applies here. We recognize that Circle
Block was not able to use the Conrad property as it would
have preferred. But as Indiana Repertory Theatre and the over-
whelming majority of similar cases under other states’ law
have held, a temporary denial of a plaintiff’s preferred use of
its property, absent some physical alteration, does not fall
within the plain meaning of “direct physical loss or damage.”
Accord, e.g., Paradigm Care, 33 F.4th at 421–22; Sandy Point
Dental, 20 F.4th at 334–35; SA Palm Beach, LLC v. Certain Un-
derwriters at Lloyd’s London, 32 F.4th 1347, 1358–59 (11th Cir.
2022) (rejecting loss-of-use theory and collecting cases). Be-
cause of the Conrad’s status as an essential business for cer-
tain purposes, it was permitted to remain open to provide
lodging and delivery or carryout food services. In other
words, the hotel was not rendered “completely uninhabitable
by the pandemic.” See Sandy Point Dental, 20 F.4th at 334.
The “period of restoration” language in the policy rein-
forces our conclusion, just as it did for the Indiana Court of
Appeals. Like the policy in Indiana Repertory Theatre, Circle
Block’s policy provides coverage during the “period of resto-
ration,” which ends when the property is “repaired, rebuilt,
or replaced” or when business resumes “at a new permanent
location.” See 180 N.E.3d at 410. Without any “physical
8 No. 21-2459
alteration or impact” to the premises, “there can be no period
of restoration.” Id.; accord, e.g., Sandy Point Dental, 20 F.4th at
333 (“Without a physical alteration to property, there would
be nothing to repair, rebuild, or replace.”); Santo’s Italian Café
LLC v. Acuity Insurance Co., 15 F.4th 398, 403 (6th Cir. 2021)
(“What the restaurant needed was an end to the ban on in-
person dining, not the repair, rebuilding, or replacement of
any of its property.”). Like the theater, the Conrad “was not
destroyed or altered in a physical way that would require res-
toration or relocation.” Indiana Repertory Theatre, 180 N.E.3d
at 410.
To avoid these precedents and their reasoning, Circle
Block asserts that its complaint satisfies their pleading de-
mand for direct physical loss or damage. Circle Block relies
on its allegations that virus particles physically attached to
surfaces at the Conrad. In support of that theory, amicus Pur-
due University also has asserted that the virus “adsorbs” onto
surfaces and materially alters them. According to Circle
Block, these allegations are sufficient to show that the Conrad
was physically altered by the virus.
There are a few problems with this argument. For one, nei-
ther Sandy Point Dental nor Indiana Repertory Theatre said that
any imaginable physical alteration is sufficient. The examples
of physical alterations in Sandy Point Dental included cases in-
volving termites, which are “notorious for chewing through
wood and compromising the structural integrity of build-
ings,” and asbestos fiber contamination. 20 F.4th at 333–34. As
the district court here explained, conditions like those “gener-
ally involve persistent physical contamination that requires
repair or replacement, rather than cleaning and disinfecting,
to remediate.” Circle Block, 2021 WL 3187521, at *7; see also
No. 21-2459 9
Indiana Repertory Theatre, 180 N.E.3d at 410 (upholding denial
of coverage because theater building “was not destroyed or
altered in a physical way that would require restoration or re-
location”). That is not the kind of alteration Circle Block is al-
leging. Accord, e.g., East Coast Entertainment, 31 F.4th at 551
(“The mere presence of the virus on surfaces did not physi-
cally alter the property, nor did the existence of airborne par-
ticles carrying the virus.”); Unmasked Management, Inc. v. Cen-
tury-National Insurance Co., 514 F. Supp. 3d 1217, 1225–26 (S.D.
Cal. 2021) (rejecting theory that presence of virus particles on
surface constitutes physical alteration). 2
Adopting Circle Block’s argument would require us to
carve out a narrow sliver of circumstances in which a busi-
ness’s COVID-19 insurance claim may proceed. At oral argu-
ment, Circle Block acknowledged that its position would ef-
fectively be limited to hotels in Indiana, based on both length
of exposure and the types of surfaces present in hotels. But
many other businesses where employees and patrons may be
subject to prolonged exposure—dental offices or restaurants
or childcare centers—have draperies, carpeting, and other
surfaces like the ones Circle Block identifies. For that matter,
2 Circle Block and amicus Purdue take issue with the district court’s
reference to “cleaning and disinfecting.” They argue that cleaning efforts
may be less effective in eradicating the virus than was previously under-
stood. Perhaps so, but that does not undermine the district court’s conclu-
sion that the issue is different in kind from one requiring “repair or re-
placement.” Circle Block, 2021 WL 3187521, at *7. In fact, Purdue agrees
that “[c]leaning helps,” even if “it is not a panacea.” Whether a reasonable
policyholder would understand the policy’s restoration language to in-
clude a problem typically resolved through cleaning—as opposed to the
more extensive remedial measures in cases involving termites or asbes-
tos—is a legal question that the district court was entitled to answer.
10 No. 21-2459
we have also rejected other hotels’ COVID-19 coverage
claims. E.g., Crescent Plaza Hotel Owner, L.P. v. Zurich American
Insurance Co., 20 F.4th 303, 308 (7th Cir. 2021); Bradley Hotel
Corp. v. Aspen Specialty Insurance Co., 19 F.4th 1002, 1006 (7th
Cir. 2021). We see no principled distinction for holding that
Circle Block can succeed where those plaintiffs did not.
Under the standards set out in Sandy Point Dental and In-
diana Repertory Theatre, which we view as consistent with gen-
eral principles of Indiana law and which we believe the Indi-
ana Supreme Court would adopt, Circle Block has not alleged
direct physical loss or damage to property.
B. Circle Block’s Other Arguments
Circle Block raises several other arguments specific to its
own policy to show that it has suffered “direct physical loss”
or “direct physical damage.” None are persuasive.
1. Direct Physical Loss
First, Circle Block says that the policy provides coverage
for “direct physical loss” to three types of intangible property.
Those three examples are “stock,” which includes a policy-
holder’s interest in labor or services; computer data and soft-
ware; and the value of digital stamps. According to Circle
Block, these examples show that “direct physical loss” does
not require physical alteration or destruction of property. A
contrary reading, Circle Block argues, would make the cover-
age for those items meaningless.
None of those provisions are rendered ineffective by inter-
preting “direct physical loss” to require some physical altera-
tion. Covered data and software are “recorded, installed, or
stored on media.” “Media,” in turn, means “the physical ma-
terials upon which data or software are recorded, installed, or
No. 21-2459 11
stored.” If those “physical materials” suffer physical damage
or are lost, coverage would presumably be triggered. So too
for the value of digital stamps, which are stored on a meter
that could be physically altered or destroyed. And the “stock”
provision refers to “interest in labor, materials, or services fur-
nished or arranged by you on personal property of others”—
property that might suffer a physical alteration. 3
For each example, it is also possible to imagine “complete
dispossession” of the property. Cf. Sandy Point Dental, 20 F.4th
at 334 (noting that complete dispossession of property is “eas-
ily characterized as a ‘direct physical loss’”). And even setting
all that aside, Circle Block’s argument fails for the simple rea-
son that none of these definitions change the plain meaning
of “direct physical loss.” See Melcorp, Inc. v. West American In-
surance Co., 548 F. Supp. 3d 711, 718 (N.D. Ill. 2021) (“It strains
credulity to think that an average reader would reject the
plain, ordinary meaning of ‘physical loss’ because that mean-
ing might render inoperative three terms (‘labor,’ ‘services,’
and ‘use interest’) in a lengthy list set forth in a definition else-
where in the policy.”), aff’d mem., No. 21-2448, 2022 WL
2068256 (7th Cir. June 8, 2022).
Next, Circle Block relies on the policy’s “concealed dam-
age” exclusion. That exclusion applies to the section of the
policy that provides “transit coverage.” It excludes any losses
“caused by or resulting from … [c]oncealed damage to [prop-
erty], unless there are visible marks on the container or pack-
ing material surrounding the damaged item, evidencing that
3 The Fifth Circuit rejected a similar argument, but in a non-preceden-
tial order. PS Business Management, L.L.C. v. Fireman’s Fund Insurance Co.,
No. 21-30723, 2022 WL 2462065, at *2–3 (5th Cir. July 6, 2022).
12 No. 21-2459
direct physical loss or damage was caused by or resulting
from an external covered cause of loss.” Since the “transit cov-
erage” is triggered by direct physical loss or damage, Circle
Block reasons, there would be no need for the exclusion if “di-
rect physical loss” required some physical alteration.
In another COVID-19 insurance case, we rejected a similar
surplusage argument in the context of an exclusion. See Cres-
cent Plaza, 20 F.4th at 310–11. As we explained, “insurance pol-
icies often use overlapping provisions to provide greater cer-
tainty on the scope of coverages and exclusions.” Id. at 311;
see also, e.g., Santo’s Italian Café, 15 F.4th at 406 (“It is no over-
statement to say that it would not be an insurance contract if
it did not come with some surplusage.”). Here too, the “con-
cealed damage” exclusion is most logically understood as
clarifying that coverage is triggered only by some physical al-
teration or dispossession of property—not as altering the def-
inition of “direct physical loss.”
Finally, Circle Block relies on two decisions interpreting
“direct physical loss” under Indiana law, but neither per-
suades us to change course on these issues. In Cook v. Allstate
Insurance Co., No. 48D02-0611-PL-01156, 2007 Ind. Super.
LEXIS 32 (Ind. Super. Nov. 30, 2007), a state trial court said
that “a physical condition that renders property unsuitable
for its intended use constitutes a ‘direct physical loss.’” Id. at
*9. That language was dicta, as the court had already con-
cluded that it was too late for the insurer to raise the defense
that there was no direct physical loss. Id. at *7–8 & n.1. As the
district court here explained, Cook also did not cite “any con-
trolling Indiana precedent” to support its loss-of-use theory.
Circle Block, 2021 WL 3187521, at *5. The loss-of-use theory
was also rejected in Indiana Repertory Theatre. 180 N.E.3d at 411
No. 21-2459 13
(holding that plaintiff’s claim for “loss of use of its theatre due
to the COVID-19 pandemic was not physical loss or physical
damage”).
Nor does Ports of Indiana v. Lexington Insurance Co., No. 09-
cv-0854, 2011 WL 5523419 (S.D. Ind. Nov. 14, 2011), help Cir-
cle Block. That case involved a dock wall that had indisputa-
bly suffered some degree of physical damage. In considering
whether additional portions of the wall had been damaged,
the court looked to functionality. More specifically, the court
said that analyzing physical damage involved “determining
if there is a quantifiable loss in the property’s usefulness or in
its function for normal purposes.” Id. at *10. The court made
clear, however, that it was not “conflating usability with phys-
ical damage.” Id. And given the more recent, more relevant,
and more authoritative analysis in Indiana Repertory Theatre,
neither of Circle Block’s cited cases is persuasive. Circle Block
has failed to allege a direct physical loss.
2. Direct Physical Damage
Circle Block also argues that it has plausibly alleged “di-
rect physical damage” to property. Circle Block did not make
this argument in the district court and discussed it only fleet-
ingly in its briefs here. See Circle Block, 2021 WL 3187521, at *3
n.3 (“Circle Block argues only that the ‘loss’ portion of the ‘di-
rect physical loss or damage’ clause provides it coverage.”).
In particular, Circle Block says that “SARS-CoV-2 particles
physically altered and damaged the Conrad Hotel by adding
material matter (dangerous viral particles) to the surfaces that
was not there before.”
As discussed above, we are not persuaded that virus par-
ticles caused the kind of physical alteration required to trigger
14 No. 21-2459
coverage under the plain language of the policy. Setting that
problem aside, it is also hard to see how the Conrad was
“damaged” by any such alterations. In ordinary parlance, the
term “damage” connotes some kind of harm. The fact that
“material matter” has been added to hotel surfaces does not
mean Circle Block’s property has been harmed. Accord, e.g.,
Connecticut Children’s Medical Center v. Continental Casualty
Co., No. 21-cv-291, — F. Supp. 3d —, 2022 WL 168786, at *4–5
(D. Conn. Jan. 19, 2022) (collecting cases rejecting theory that
presence of virus on surfaces causes “physical damage”), ap-
peal docketed, No. 22-322 (2d Cir. Feb. 17, 2022).
In addition, Circle Block’s broad definition would seem to
extend coverage to any situation where “material matter” is
added to a surface. A sneeze that spreads cold virus particles,
for example, would be deemed to have inflicted “direct phys-
ical damage.” We have a hard time imagining that a reasona-
bly intelligent policyholder would share such an expansive
understanding of that phrase. Nor does Circle Block explain
how this addition of “material matter” would “require resto-
ration or relocation.” See Indiana Repertory Theatre, 180 N.E.3d
at 410; accord, e.g., Paradigm Care, 33 F.4th at 421–22 (“The
[plaintiffs] do not assert—nor could they under the plain and
unambiguous terms of the policies—that their property was
physically altered by the COVID-19 virus, such that it had to
be repaired, rebuilt, or replaced.”). Circle Block has not al-
leged direct physical damage to property.4
4
Because we conclude that Circle Block has failed to allege direct
physical loss or damage to property, we need not decide whether the
“mortality and disease” exclusion would bar coverage.
No. 21-2459 15
III. Leave to Amend
Circle Block argues that it should have been granted leave
to amend its complaint to cure any pleading deficiencies. Or-
dinarily, a plaintiff whose complaint is dismissed under Rule
12(b)(6) “should be given at least one opportunity to try to
amend her complaint before the entire action is dismissed.”
Runnion ex rel. Runnion v. Girl Scouts of Greater Chicago &
Northwest Indiana, 786 F.3d 510, 519 (7th Cir. 2015). We have
said that a court should deny leave to amend “only if it is cer-
tain that amendment would be futile or otherwise unwar-
ranted.” Zimmerman v. Bornick, 25 F.4th 491, 494 (7th Cir.
2022). While we review a denial of leave to amend for abuse
of discretion, assessing futility requires de novo consideration
of whether the plaintiff’s new theory would be viable. Thomas
v. Dart, 39 F.4th 835, 841 (7th Cir. 2022).
We fail to see how Circle Block could cure the deficiencies
in its complaint. In Sandy Point Dental, we concluded that the
district court’s denial of leave to amend was permissible even
though the plaintiff had offered specific allegations it wished
to add. See 20 F.4th at 335. Here, Circle Block has not pro-
posed any new allegations that would address the problems
identified by the district court. See, e.g., Gonzalez-Koeneke v.
West, 791 F.3d 801, 808 (7th Cir. 2015) (“A district court acts
within its discretion in denying leave to amend, either by dis-
missing a complaint with prejudice or by denying a post-
judgment motion, when the plaintiff fails to demonstrate how
the proposed amendment would cure the deficiencies in the
prior complaint.”); see also Law Offices of David Freydin, P.C. v.
Chamara, 24 F.4th 1122, 1134 (7th Cir. 2022) (affirming denial
of leave to amend where plaintiffs “never showed the district
court how they thought they could amend their complaint to
16 No. 21-2459
cure its deficiencies”). Under these circumstances, the district
court did not err by dismissing the case without leave to
amend the complaint.
IV. Motion to Certify
Finally, Circle Block asks us to certify two questions of
state law to the Indiana Supreme Court. The questions pro-
posed by Circle Block are:
1. Does the undefined insurance policy term
“direct physical loss or damage” require tan-
gible, visible physical alteration or destruc-
tion of property under Indiana law?
2. Does the persistent attachment of invisible—
yet physical, dangerous, and harmful—par-
ticles to property constitute “direct physical
loss or damage” under Indiana law?
Circle Block argues that these questions are not resolved by
existing Indiana law and that they control the outcome of this
case.
Circuit Rule 52 governs certification of questions of state
law. The rule allows for certification to a state’s highest court
“in accordance with the rules of that court.” Cir. R. 52(a). In-
diana Rule of Appellate Procedure 64, in turn, provides that a
federal court “may certify a question of Indiana law to the Su-
preme Court when it appears to the federal court that a pro-
ceeding presents an issue of state law that is determinative of
the case and on which there is no clear controlling Indiana
precedent.” The decision to certify rests “in the sound discre-
tion of the federal court.” Mckesson v. Doe, 141 S. Ct. 48, 51
(2020), quoting Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974).
In exercising that discretion, “the most important
No. 21-2459 17
consideration is whether we find ourselves genuinely uncer-
tain about a question of state law that is key to a correct dis-
position of the case.” In re Hernandez, 918 F.3d 563, 570 (7th
Cir. 2019), quoting Lyon Financial Services, Inc. v. Illinois Paper
& Copier Co., 732 F.3d 755, 766 (7th Cir. 2013).
Certification is not warranted here. For the reasons ex-
plained above, we do not have any “serious doubt” about
how the Indiana Supreme Court would resolve these ques-
tions. See Seekins v. CHEP USA, 20 F.4th 345, 351 (7th Cir.
2021), quoting State Farm Mutual Automobile Insurance Co. v.
Pate, 275 F.3d 666, 672 (7th Cir. 2001). Nor does Indiana case
law send “conflicting signals as to the appropriate answers.”
Cutchin v. Robertson, 986 F.3d 1012, 1015 (7th Cir. 2021). These
issues are undoubtedly important to policyholders and insur-
ers, but the Indiana Supreme Court will have opportunities to
address them in cases proceeding through the state courts.
The Indiana Supreme Court recently decided not to address
those issues when it denied transfer in Indiana Repertory Thea-
tre. See Pate, 275 F.3d at 673 (declining to certify question
where Indiana Supreme Court “has had the opportunity to
address the question and has not done so”). This is not a case
where certification “may be the only way to allow the state
courts to resolve an issue of state law.” American Safety Casu-
alty Insurance Co. v. City of Waukegan, 678 F.3d 475, 481 (7th
Cir. 2012).
The judgment of the district court is
AFFIRMED.